RMC & Anor, R (on the application of) v Commissioner of Police of the Metropolis & Ors

Retention by the police of identifiable custody photographs interferes with the right to respect for private life under article 8 of the Convention. Such retention requires a sufficiently accessible legal framework and a proportionate policy.

A policy permitting lengthy and potentially indefinite retention failed to strike a fair balance where it drew no adequate distinction between convicted and unconvicted people and gave insufficient protection to minors. Bright-line retention periods are permissible in principle, but they must contain safeguards reflecting innocence, age, necessity and duration. By contrast, retaining a concise record of an unprosecuted allegation on the Police National Computer may be proportionate where deletion would make the record incomplete and impair consideration of any future allegation.

Two people of previous good character were arrested and photographed but were neither charged nor prosecuted. One was aged 12 when arrested. They sought judicial review of the Metropolitan Police's continued retention of their custody photographs under section 64A of the Police and Criminal Evidence Act 1984 and the policy of applying the Management of Police Information Code and guidance.

The younger claimant also challenged the Police National Computer's retention of basic information recording the allegation, arrest and investigation. The central issues were whether retaining the photographs interfered with article 8(1), whether the applicable framework was sufficiently accessible and proportionate under article 8(2), and whether retention of the Police National Computer information was justified.

1. The claims concerning custody photographs were allowed. Retention of identifiable photographs in police records interfered with the claimants' right to respect for private life under article 8(1). The Grand Chamber's reasoning in S v United Kingdom treated photographs, fingerprints and voice samples as personal data containing external identifying features. Systematic retention can engage private-life considerations even where the image was lawfully taken following arrest.

2. A measure must be accessible and foreseeable to be in accordance with law. It must state with sufficient clarity the scope and manner of the authority's discretion. Section 64A of the Police and Criminal Evidence Act 1984, taken alone, was too broad and imprecise. The Management of Police Information Code and guidance supplied a clear and detailed retention framework. There remained, however, a serious accessibility problem because no clear published statement connected that framework to the Commissioner's policy for custody photographs.

3. The existing policy was disproportionate. Although it was more structured than the regime considered in S v United Kingdom, and bright-line rules were permissible in principle, it suffered from materially similar defects. It drew no adequate distinction between convicted people and those who had not been charged or had been acquitted. It permitted retention for at least six years, with review periods capable of producing much longer or potentially indefinite retention. It also failed to address adequately the special harm which retention of unconvicted persons' data may cause to minors.

4. The appropriate relief was a declaration that the Commissioner's policy of applying the Management of Police Information Code and guidance to custody photographs was unlawful. Immediate destruction was not ordered. The Commissioner was allowed a reasonable further period, measured in months rather than years, to formulate a revised policy and reassess retention under it.

5. The younger claimant's challenge to retention of his Police National Computer record was dismissed. A record omitting the basic history of the allegation, arrest and investigation would have been incomplete and potentially misleading. If article 8 was engaged, the interference was small and plainly proportionate because knowledge of the earlier matter could be important when assessing any similar future allegation.

This was a first-instance judicial review. Permission had previously been refused for challenges concerning fingerprints and DNA samples because those matters had been examined in R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21. Permission was granted for both challenges concerning custody photographs and for the younger claimant's challenge concerning information on the Police National Computer.